2017 QCCQ 14513, 2017 QCCQ 14513

Mancini c. Kelley 2017 QCCQ 14513 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-151559-160 DATE: December 12, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Sandro Mancini Plaintiff v. Patrick KellEy - and - SYLVIANE HINNEKENS KELLEY - and - RENATE MARIANNE VAN DER GRIEND Defendants - and - JOHN DEAKIN - and - IMMEUBLES DEAKIN REALTY - and - THIERRY S.

FLAMANT Impleaded Parties ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $5,335.18 from Defendants Patrick Kelley and Sylviane Hinnekens Kelley (the “ Kelleys ”), from whom he purchased a duplex in 2006, as well as from Renate Marianne Van Der Griend (“ Der Griend ”), the listing agent on the transaction. He discovered after purchasing the property that it violated municipal by-laws and was forced to proceed to corrective work to regularize the situation.

He holds defendants responsible and seeks to recover from them the costs he incurred to do so ($3,335.18), as well as damages ($2,000). [ 2 ] The Kelleys deny liability on the grounds that they knew nothing of the violation and that it was for Plaintiff to make appropriate inquiries with the municipal authorities before purchasing the property. Subsidiarily, they have impleaded Thierry G.

Flamant, who sold them the property in 2003, as well as their agents at the time, John Deakin and Immeubles Deakin Realty, to be indemnified of any condemnation that may arise from Plaintiff’s claim. [ 3 ] Der Griend and Thierry G. Flamant did not respond to the proceedings. The matter therefore proceeded by default as far as they are concerned.

FACTUAL CONTEXT [ 4 ] In 2006, Plaintiff purchased a duplex located in Pointe-Claire (the “ Duplex ”) from the Kelleys. [1] It was already a two-unit rental property at the time and financing was secured by Plaintiff on that basis. [2] [ 5 ] When Plaintiff refinanced the Duplex some time in 2014, however, he was advised that it violated municipal by-laws in that it was situated in an area zoned strictly for single-family homes. [ 6 ] In December 2014, he advised the Kelleys and Der Griend of the situation and put them on notice that he was holding them responsible for all costs, disbursements, loss of rental income and other damages that he may suffer as a result of the violation. [3] [ 7 ] He then requested a derogation or change to the zoning by-laws to rectify the situation.

To obtain this, he had to proceed to various upgrades and corrective work at a total cost of $3,335.18. [4] After a zoning change was confirmed in September 2015 [5] , he demanded payment of $5,297.65 from the Kelleys and Der Griend. [6] Having received no response to his letter of demand, he filed his claim on March 15, 2016, adjusting the amount claimed to $5,335.18. QUESTIONS IN ISSUE [ 8 ] Given these facts and the position of the parties, the Court must address the following questions:

a) Are the Kelleys liable towards Plaintiff for the zoning violation?

b) Is Der Griend liable towards Plaintiff for the zoning violation?

c) If the Kelleys and/or Der Griend are liable, is Plaintiff entitled to the amounts claimed?

d) Is the action in warranty against the Impleaded Parties well founded? ANALYSIS

a) Are the Kelleys liable towards Plaintiff for the zoning violation? [ 9 ] The basis of Plaintiff’s claim against the Kelleys is the legal warranty of ownership that the Civil Code of Québec (“ C.C.Q. ”) imposes upon sellers of an immovable [7] and, more particularly, the warranty against violations of public law restrictions (such as municipal by-laws [8] ) provided for in

article 1725 C.C.Q.: 1725. The seller of an immovable warrants the buyer against any violation of public law restrictions affecting the property which are exceptions to the ordinary law of ownership.

The seller is not bound to that warranty where he has given notice of these restrictions to the buyer at the time of the sale, where a prudent and diligent buyer could have discovered them by reason of the nature, location and use of the premises or where such restrictions have been registered at the registry office. [Emphasis added] [ 10 ] A seller must therefore guarantee that the immovable being sold does not violate municipal by-laws at the time of the sale. If a violation is discovered after the sale, the seller will be liable towards the purchaser whether he knew of the violation or not unless: (

a) the violation was disclosed to the purchaser prior to the sale; (

b) a prudent and diligent purchaser would have discovered the violation; or (

c) the restriction that is violated was published on the land register. [ 11 ] This legal warranty is not mandatory, however.

The seller and the buyer may, in the deed of sale, limit or exclude the legal warranty of ownership. [9] Such clauses are valid and will protect the seller from liability insofar as he or she acted in good faith and knew nothing of the violation at issue. [10] [ 12 ] In the instant case, the Deed of Sale entered into by the Kelleys and Plaintiff contains the following provision: “ OBLIGATIONS The Purchaser obliges himself to : […] 3) Take the immovable in its present state declaring that he has seen and examined the same, to his satisfaction, and he has himself verified with the competent authorities that the use that he intends to make of the immovable is in conformity with the laws and regulations in force ; [Emphasis added] [ 13 ] In other words, Plaintiff expressly undertook to verify with the competent authorities that the Duplex complied with municipal by-laws in force and even declared that he had done so.

This is an exclusion of the legal warranty against public law restrictions [11] and it protects the Kelleys, as the evidence shows that they knew nothing of the zoning violation and acted in good faith. [ 14 ] Consequently, Plaintiff’s claim against the Kelleys must be dismissed.

b) Is Der Griend liable towards Plaintiff for the zoning violation? [ 15 ] Der Griend’s potential liability towards Plaintiff must be analyzed in light of the general duty of care imposed on every person by

article 1457 C.C.Q., which reads as follows: [12] 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. [ 16 ] The Court must consider Der Griend’s professional obligations as listing broker, as they include a duty of information towards all parties to a transaction which, if breached, may give rise to civil liability under

article 1457 C.C.Q. [13] [ 17 ] To succeed against Der Griend, Plaintiff must prove on a balance of probabilities [14] that she failed in her obligations (i.e. committed a fault) and that the damages sought are the direct and immediate consequence of her fault. [15] [ 18 ] Plaintiff admits that the property listing prepared by Der Griend contained no inaccurate information. He does not claim that the zoning issue was discussed with Der Griend or that she undertook to make any verifications in this regard. He simply argues that as listing agent, Der Griend should have verified that the Duplex complied with municipal by-laws.

[ 19 ] The Court disagrees. There is no evidence whatsoever that Der Griend was aware of any issue regarding zoning. The property had been operated as a duplex since 1987; there were two separate Hydro-Québec meters for each unit; the municipal tax invoices referred to two distinct addresses, indicating that the City knew that it was not a single-family property; and there were other similar properties nearby.

Under these circumstances, the Court does not believe that Der Griend had a duty to verify that the Duplex complied with municipal by-laws. [ 20 ] Having failed to establish a fault on the part of Der Griend, Plaintiff’s claim against her must also be dismissed. [ 21 ] Given the conclusions reached by the Court on the two first questions in issue, it is unnecessary to consider the third question regarding the quantum of Plaintiff’s claim.

It is also unnecessary to address the argument raised by John Deakin and Immeubles Deakin Realty regarding potential acquired rights, as the dismissal of the claim against the Kelleys entails the dismissal of their action in warranty against the Impleaded Parties. FOR THESE REASONS, THE COURT: DISMISSES the principal action; DISMISSES the action in warranty against the impleaded parties, namely Thierry G.

Flamant, John Deakin and Immeubles Deakin Realty; WITH LEGAL COSTS in favour of Defendants Patrick Kelley and Sylviane Hinnekens Kelley in the amount of $185, representing the judicial fees paid on their Contestation. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: October 24, 2017